not effect the essential character of the extinguished gift-it was, properly speaking, a lapsed legacy or devise in either case. The statute of Kentucky, like that of Maryland, also contains the negative clause "shall not lapse," and in Yeates v. Gill, supra, it was contended that it did not apply to a devise to "children," as in such case there can be no lapse so long as there are survivors of the class. But the court rejected this view, and said: “We are of the opinion that the statute was intended to promote equality in the distribution of estates, and to subserve the probable intention of testators under a change of circumstances not expressly provided for only (as might be presumed), because express provision was not understood to be necessary; and it should be construed liberally for the effectuation of those objects." It will be observed that our statute contains no such negative words; it simply affirms that the issue of such deceased devisee surviving the testator, shall take what the deceased would have taken, had he survived; and, as before observed, under our statute the construction is solved by determining whether, in that event, he would have taken as a devisee under the will.

It is also argued

Sec. 460. Vesting of a devise. that the issue can not take because the devise to the children of Isaac is, as claimed, a contingent one, that is to say, depends not only upon their surviving the testator, but also the wife of the testator, to whom was given a life estate in the whole property, and, to the determination of which estate, the gift to the father for life as well as the remainder to the children was postponed. To this it may be answered: (1) That the vesting in interest of the devise is not made to depend by the will upon any condition whatever; the devise is absolute-no adverbs of time nor words of survivorship being used, and therefore must be construed as a gift vesting in interest if not in possession at the death of the testator. Hawk. Wills, 71; Linton v. Laycock, 33 Ohio St. 128; Schouler on Wills, Sec. 560, 562. (2) As heretofore shown, the statute applies to contingent gifts as well as to vested ones. And (3) that by the death of Isaac the tenant for life and of his mother, in the life-time of the testator, both of these prior lifeestates were eliminated from the will, and the devise to Isaac's children was thereby accelerated so as to take effect at the death of the testator, not only as an estate in interest, but also in possession; so that, if the inchoate devise was contingent at the date

of the wili, by reason of the creation of these life-estates, it ceased to be such before the death of the testator. By the extinction of these life-estates the devise to Isaac's children took effect at the death of the testator as an immediate devise to the survivors and the issue of such as had deceased, in the same manner, and with like effect, as if no inchoate prior estates had been created at the date of the will. 2 Williams' Exr's. 1219. "If money from whatever source arising, be directed to be laid out in the purchase of land to be settled in any manner, equity will regard the persons on whom the lands are to be settled as already in the possession of their estates.' Will. Real. Pr. 164.

The fact that before the death of the testator, his wife and his son Isaac had died, so that there were no prior intervening estates postponing in any way the bequest to Isaac's children, renders the decisions in Ritchey v. Johnson, 30 Ohio St. 288, and in Hamilton v. Rodgers, 38 Ohio St. 242, on which much reliance seems to be placed by counsel for defendant in error, wholly inapplicable here and their examination unneccessary.

It is also claimed that the form of the bequest to his daughter Julia A. Stroop, and to the son of his daughter Ivey Varner, indicate an intention on the part of the testator, that the survivor only of the children of Isaac should take, and so as to his son Ezeriah's. But we think that the form of the former devises can shed very little light upon his intention as to the latter. In the first two instances the bequest to each, as well as to the heirs of each, is necessarily contingent, until the time for distribution arrives. For example, the designated share is to be paid Julia "if she be living, or to her heirs, if she be dead at the time the same is ready to be paid," clearly indicating that "heirs" are to take by substitution, should the mother die before the time of payment arrives. If she survives that time, she takes absolutely, and the conditional gift over to the "heirs'' is gone. In the latter instances the gift is to each son for life, and then to his children in fee-simple, without any condition as to either estate. The death of the father simply accelerates the enjoyment of, but does not create or vest the devise to the children.

Judgment of the circuit court reversed, and that of the com mon pleas affirmed.

Owen, C. J., and Williams, J., dissent.

NOTE, See Epitome of cases: Wills

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EPITOME OF CASES.

[The following is an Epitome of all the legal principles appertaining to real estate law, which have been enunciated in the cases reported in the official volumes, and which are not re-reported in this volume or used in the annotations to cases which are re-reported.]

ABSTRACTER.

Sec. 461. Inspection of records. Under the statute of Michigan, enacted in 1889, requiring the "officers having the custody of any county, city or town records'' to furnish facilities for inspection of records and files during business hours to all persons having occasion to examine them for any legal purpose, subject to reasonable rules and regulations, it was held that a mandamus would lie to compel a city treasurer to permit an abstracter to inspect the books wherein is recorded tax sales, and that no compensation could be charged for such inspection. right of such abstracter to examine public records is not to be abridged because he uses the information thus obtained for private gain. Burton v. Tuite, 78 Mich. 363 (44 N. W. Rep. 282; 7 L. R. A. 73).

ABUTTING OWNERS.

The

Sec. 462. Railroads in streets. A street railroad company takes its franchise from the city, subject to the right of the legislature to enact a law providing for compensation to abutting owners. Taylor v. Street Ry. Co., 80 Mich. 77 (45 N. W. Rep. 335). It was held that streets could not be occupied by a railroad, without the consent of the city and compensation to abutting owners. Enos v. C., St. P. & K. C. Ry. Co., 78 Iowa 29 (42 N. W. Rep. 575). Long acquiescence on the part of the abutting owners, will bar a recovery of damages. Merchants' Union Barb-Wire Co. v. C., R. I. & P. Ry. Co., 79 Iowa 613 (44 N. W. Rep. 900). Under the Iowa statute it is held that the abutting owner can not recover damages on account of a railroad track in the street, placed there by permission of the city, without proof of the actual damage to his property. Cook v. Chicago.

M. & St. P. Ry. Co., (Ia.) 49 N. W. Rep. 92.* A street railroad, operated by a steam motor, creates an additional burden on the land. Nichols v. Ann Arbor & Ypsilanti St. Ry. Co., (Mich.) 49 N. W. Rep. 538. A contrary conclusion was reached in Detroit City Ry. v. Mills, (Mich.) 48 N. W. Rep. 1007*; and, also, in Ransom v. Citizens' Ry. Co., (Mo.) 16 S. W. Rep. 416.*

*

Sec. 463. Miscellaneous notes. The right of an abutting owner to have access to and egress from the street is property of which he cannot be deprived, even for public purposes, without compensation first being made, and this right exists even where the abutter has no estate in fee in the street. An injunction will lie against the wrongful appropriation of the street. Schaufele v. Doyle, 86 Cal. 107; Lostutter v. City of Aurora, 126 Ind. 436 (26 N. E. Rep. 184). To the same effect is the case of Longmont v. Parker, 14 Colo. 386 (20 Am. St. Rep. 277; 23 Pac. Rep. 443). It also holds that consequential damages may also be recovered.

Where the fee to the highway is in the abutting owner, the grass growing upon the unused portion of the highway belongs to the abutting owner. If one traveling upon the highway wantonly and unnecessarily destroys such grass, he is a trespasser, and to eject such trespasser and prevent him from destroying the grass, no more force being used than is necessary, is not a criminal assault. People v. Foss, 80 Mich. 559 (20 Am. St. Rep. 532; 45 N. W. Rep. 480; 8 L. R. A. 472). The owner of lots adjacent to a public square, which has been dedicated to public use, may maintain a bill in equity to restrain the diversion of the square to any private use inconsistent with the purpose for which it was dedicated, if by such diversion the value of the lots will be injuriously affected. Ruge v Apalachicola Oyster C. & F. Co., 25 Fla. 656.

ACKNOWLEDGMENTS.

Neither the cer

Sec. 464. Miscellaneous notes. tificate of acknowledgment, nor the registration of a deed is conlusive proof of its execution. O'Neil v. Webster, 150 Mass. 572 (23 N. E. Rep. 235). In Dikeman v. Arnold, 78 Mich. 455 (44 N. W. Rep. 407), it is said, "The rule undoubtedly is that the burden of proof rests upon the person denying the acknowledgment to show the falsity of the certificate, which carries with it